101 Frequently Asked Florida Workers' Compensation Questions

Questions 26-50 below

The answers below are designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions regarding your specific case, please use our Find A Lawyer tool to contact an attorney to discuss your case.

26. Can I make a claim for workers’ compensation benefits and Social Security disability benefits at the same time?

Yes. The Social Security Disability and Florida Workers’ Compensation systems both provide benefits for disability and each of them has their own definitions and procedures for obtaining benefits. They are not mutually exclusive, and an individual can make a claim under both programs at the same time. However, if an individual does become entitled to benefits under both programs at the same time, the combined benefits may not exceed a certain amount and the workers’ compensation carrier, or the Social Security Administration, may “offset” or reduce the benefits. Although the offset calculation is very technical, the general rule is that a person cannot receive combined disability benefits totaling more than 80% of either their Average Weekly Wage (a worker’s comp. measure of earnings) or Average Current Earnings (a Social Security measure of earnings.

27. I live in Florida, but my accident occurred in another state. Am I covered under Florida Law?

Some accidents that occur outside of the state of Florida may be covered under Florida Law. The test for whether an out of state accident will be covered under Florida Law is whether the contract of employment was made in Florida or whether the employment was principally localized in Florida.

28. Are Florida workers’ compensation benefits payable if I tested positive for drugs or alcohol right after my accident?

In Florida, compensation is not payable if the injury was occasioned primarily by the intoxication or the employee, the influence or any drugs, barbituates, or other stimulants not prescribed by a physician. A post-accident drug test creates a presumption that the injury was in fact caused by alcohol or drugs. This means the claimant will have the burden to demonstrate that injury was not caused by alcohol or drug use. If the Employer has taken additional steps to implement a “drug free workplace”, the presumption may only be rebutted by evidence that there is no reasonable hypothesis that the intoxication or drug influence contributed to the injury. In the absence of a “drug free workplace” program, the presumption may be rebutted by clear and convincing evidence that the intoxication or influence of the drug did not contribute to the injury. Generally, a positive drug test may make the case difficult, but an attorney should be consulted to assess the facts and law of your particular situation.

29. I just was injured on the job and my employer wants me to take a drug test. Can I refuse?

You may refuse the drug test. However, under the law if the injured worker refuses to submit to a drug test, it shall be presumed in the absence of clear and convincing evidence to the contrary that the injury was occasioned primarily by the influence of drugs.

30. Are there benefits for death under Florida workers compensation law? What are they?

There are various benefits payable under Florida workers’ compensation law for the death of an employee. These benefits may be payable to the employee’s spouse and certain family members who were dependent upon the deceased at the time of the accident. Compensation to dependents may not exceed $150,000 and is payable in biweekly amounts that are a percentage of the Employees’ Average Weekly Wage. There are also benefits for funeral expenses not to exceed $7,500 and post-secondary education student fees to a surviving spouse.

31. Are all employers required to have workers’ compensation insurance coverage?

In Florida, all employers in the construction industry are required to have workers’ compensation insurance if they have one employee or more. For employers that are not in the construction injury, they are required to have workers’ compensation insurance coverage if they have four or more employees.

32. I work for the Federal Government, am I covered under Florida workers’ compensation law?

No. Federal employees are excluded under Florida worker’s compensation law, but covered under a Federal worker’s compensation law called the Federal Employees Compensation Act.

33. My accident occurred while I was working at a port on the navigable waters of the US, am I covered under Florida Workers’ Compensation Law?

Any injury covered under the federal Longshore and Harbor Workers’ Compensation Act or Jones Act is excluded from Florida Workers’ Compensation law. Most maritime employment conducted on the navigable waters will meet the “status” and “situs” requirements of the Longshore Act, but this law has many exceptions and specific limitations. The Jones Act covers seamen working in the service of a ship. Waterfront injuries that are not covered by the Jones Act or Longshore and Harbor Workers’ Compensation Act will most-likely be covered under Florida Law.

34. Are there benefits for pain and suffering under Florida Workers’ Compensation Law?

No. Florida Workers’ Compensation Law provides medical benefits and various compensation benefits, but it does not pay benefits for the pain and suffering of the injured worker.

35. My injuries were caused due to my employer’s unsafe workplace. Can I sue my employer for personal injuries?

Generally, the answer is “no ”, but this issue is currently being litigated in the courts. As the law stands now, your exclusive remedy is Florida Workers ’ Compensation Law and you may not sue your employer in tort. However, there is very limited exception if your employer deliberately intended to injure you, or placed you in a situation where there was a virtual certainty that you would be injured or killed, and the employer deliberately concealed or misrepresented the danger such that you could not make an informed decision about whether to perform the work.

36. While I was working I was involved in an automobile accident that wasn’t my fault. Am I covered under workers’ compensation law? Do I have a personal injury case or a workers’ compensation case?

If your automobile accident arose out of the course and scope of your employment (i.e. you were working), you have both a workers’ compensation case and a personal injury case. These are not mutually exclusive and you may pursue a claim against the at-fault party and receive workers’ compensation benefits as well.

You are entitled to such medically necessary remedial treatment, care and attendance for such period as the nature of the injury or the process of recovery may require. Some examples of medically necessary care and attendance are hospital treatment, emergency treatment, ambulance, prescription medications, doctor’s visits, physical therapy, durable medical equipment, nursing care, injections, surgery, pain management, home modifications, attendant care, chiropractic treatment for up to 24 visits, transportation to or from your doctor’s visits, etc. If the treatment is reasonable and medically necessary, it should be provided.

38. Are workers’ compensation disputes tried before a judge or a jury?

Workers’ compensation disputes are head before a Judge of Compensation Claims, not a jury. A Judge of Compensation Claims is an administrative judge that hears only workers’ compensation cases within the jurisdiction of the Office of Judges of Compensation Claims, Division of Administrative Hearings.

39. Do I have to go to the insurance company’s doctor?

Generally, the insurance company gets to select the physician that they offer you for treatment. If you fail to go to their doctor, they can suspend compensation. However, that does not mean that they can send you to multiple doctors or remove you from a treating doctor that you are satisfied with. Additionally, you have the right to request a one-time change of physician if you are not satisfied with the doctor that has been authorized. If the insurance company does not provide you with a doctor within 5 calendar days of your written request, then you may select a doctor of your choice.

40. Can I choose what doctor I can see?

Generally, the insurance company gets to select the doctor and is not responsible for paying for any doctor that they did not authorize. For the most part, you cannot choose your doctor. However, if the insurance company does not provide you with a doctor within 5 calendar days of your written request for a one-time change of physician, then you may select a doctor of your choice. Additionally, if the insurance company fails to provide you with medical care in a within a reasonable amount of time from your request, you may have an ability to seek your own physician during the period that medical care is not being authorized.

41. Do I have the right to change doctors if I don’t like the one provided by the workers’ compensation insurance company?

Yes. You have the right to a one-time change of physician that you may exercise in your case. However, the Employer/Carrier still retains the right to select the new doctor provided that they authorize a doctor within five days of your written request.

42. Are on-the-job injuries covered by workers’ compensation in Florida even if I was at fault?

Yes. The Florida Workers’ Compensation system is a “no fault” system, meaning that you are covered whether you were at fault for the injury or the employer was at fault. However, there are limits to this principle and accidents caused by “horseplay” are excluded as are injuries due to intoxication. Additionally, there may be a reduction of compensation of 25% if the employee knowingly refuses to use a safety appliance or observe a safety rule required by statute or lawfully adopted by the department, and brought prior to the accident to the employee’s knowledge, or if the injury is cause by the knowing refusal of the employee to use a safety appliance provided by the employer.

Yes. All workers are covered under the law regardless as to whether they are “undocumented”, “illegal” or otherwise.

44. Are there different types of damages available in a workers’ compensation claim and a third-party lawsuit?

Yes. Workers’ compensation provides medical benefits and various money benefits for disability or impairment. A “third party lawsuit” is a personal injury action against an entity other than the employer that caused the accident or injury. Personal injury damages may include full lost wages, pain and suffering, loss of consortium and possibly punitive damages.

45. Can a business self-insure for workers’ compensation?

Yes. Many larger employers are in fact self-insured for workers’ compensation. The same substantive law applies to employees of a self-insured employer compared to an employer that has an insurance company providing coverage. Self-insured employers administer the benefits paid to their employer through a risk management department, servicing agent or third party administrator.

46. Can a spouse recover for loss of consortium or services through workers’ compensation in Florida?

No. There are no benefits for loss of consortium under Florida Workers’ Compensation Law.

47. Can a worker file a lawsuit against their employer for the injuries they sustain from a work-related accident in Florida?

Generally, the answer is “no”. Your exclusive remedy is Florida Workers’ Compensation Law and you may not sue your employer in tort. However, there is very limited exception if your employer deliberately intended to injure you, or placed you in a situation where there was a virtual certainty that you would be injured or killed, and the employer deliberately concealed or misrepresented the danger such that you could not make an informed decision about whether to perform the work.

48. Can my employer make me pay for my health insurance while I am receiving workers’ compensation benefits and off work?

No, you do not have to pay any co-payments, at least initially. Following the date your authorized treating physician places you at maximum medical improvement, you are required to pay a $10.00 co-pay per visit for additional medical treatment for your work-related injury.

Mental or nervous injury due to stress, fright, or excitement only is not covered and not considered an accident arising out of the employment. In order for a mental injury to be covered there must be an accompanying physical injury requiring medical treatment. Additionally, mental or nervous injuries occurring as a manifestation of a physical injury must be demonstrated by clear and convincing evidence which is a higher burden than that necessary to prove a physical injury. Compensation is not payable for the mental, psychological or emotional injury arising out of depression from being out of work or losing employment opportunities, resulting from a preexisting mental, psychological, or emotional condition or due to pain or other subjective complaints that cannot be substantiated by objective, relevant medical findings.

50. Can I have my workers’ compensation case re-opened after a settlement?

Generally, all settlements are final and cannot be re-opened if they are made in compliance with the workers’ compensation law and in compliance with Florida law regarding contracts. If an employee entering into a settlement agreement is not represented by counsel a different set of rules apply. A Judge of Compensation Claims must consider and enter an order approving any settlement in which the claimant is not represented by an attorney. If the claimant was represented by an attorney at the time of the settlement general principles of contract law will apply. A claimant considering entering into a settlement should do so with the understanding that the case will not be able to be re-opened in the future.

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